IJAZ UL AHSAN, J.---Through this single judgment, we propose to decide Civil Petition No,2342 of 2018 and Civil Petition No,2618 of 2018, as both arise from a common judgment of the High Court of Sindh, Karachi.
2. The petitioners seek leave to appeal against a judgment dated 29.03.2018 passed by a learned Division Bench of the High Court of Sindh, Karachi. Through the impugned judgment, a Constitution Petition bearing No,D-8006 of 2017 filed by Respondent No,1 (Bibi Yasmeen Shah) was allowed and an order passed by the Election Commission of Pakistan ("the Petitioner") dated 25.10.2017 was set aside.
3. Respondent No,1 contested the General Elections of 2008 from NA-225, Badin-cum-T.M. Khan-II.
Objections were filed against her nomination papers before the Returning Officer by Mirza Sohail Akbar, Dr. Abdul Aziz Memon and Respondent No,4 (Dr. Fahmida Mirza, petitioner in Civil Petition No,2618 of 2018) based on an allegation that she possessed a fake/forged B.A. degree. The objections were rejected on 07.04.2003. The said order was assailed through Election Appeal No,72 of 2017 which met the same fate. Both dismissal orders were challenged in the constitutional jurisdiction by way of C.P.No,D-2500 of 2007 before a Full Bench of the High Court of Sindh. The learned Full Bench allowed Respondent No,1 to contest General Elections and the matter regarding her fake degree was remanded to the Election Tribunal to conduct an inquiry within a period of four months. The said inquiry could not be concluded within four months and subsequently in 2009, the requirement of Graduation was done away with.
4. In Constitution Petition No,1465 of 2013 filed by Respondent No,4, the Full Bench of the High Court of Sindh, vide order dated 09.05.2013 had directed Respondent No,1 to place all her educational testimonials from Matric upto Graduation in original before the Petitioner. It was directed that the same may be done within 10 days and the Petitioner shall in compliance with the order of the High Court proceed to hold a detailed and inclusive inquiry with an opportunity of hearing to both parties and decide the matter within one month.
5. In compliance with the aforenoted order passed by the Full Bench of the High Court of Sindh, the Petitioner held a detailed inquiry into the matter by offering proper hearing to the parties. It is pertinent to mention that the Higher Education Commission through its letter dated 10.05.2017 addressed to the Petitioner had declared the B.A degree of Respondent No,1 as fake/forged.
6. On the basis of its inquiry,- the Petitioner held that Respondent No,1 managed to occupy seats in the Senate of Pakistan right from 2003 by making false statement with regard to her educational qualification. Consequently, it was directed that she be de-notified as Senator retrospectively from the date when she for the first time entered upon her office. It was also directed that retrospective de-notification shall bear its own legal consequences i,e, recovery of all financial benefits.
7. Respondent No,1 was aggrieved of the order of the Election Commission of Pakistan dated 25.10.2017. She assailed the same before the High Court of Sindh, Karachi through Constitution Petition No,D-8006 of 2017. The learned High Court after hearing the parties and with their consent set aside the order dated 25.10.2017 passed by the Petitioner, remanded the matter with a direction that the Petitioner may give a decision only to the extent of verification of educational testimonials, particularly, B.A. degree, whereafter, the consequences will follow and the parties would be at liberty to seek further remedy by approaching the relevant forum in accordance with law. The petitioner being the Election Commission of Pakistan is aggrieved of the said order.
8. The learned counsel for the petitioner submits that the impugned judgment is not sustainable as it proceeds on a complete non-reading and misreading of the material on record. He maintains that the impugned judgment runs contrary to the law laid down by this Court in Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828) and Najeeb-ud-Din Owasi v. Amir Yar Waran (PLD 2013 SC 482). He submits that the primary object of the Election Commission of Pakistan at the pre- election stage is to curb corrupt practices in elections, which includes de-notification of candidates claiming to hold educational qualifications in the nomination papers which are based upon misrepresentation and fraud.
9. The learned counsel further submits that the Higher Education Commission had categorically stated that the B.A. degree of Respondent No,1 was fake and on the basis thereof, the Election Commission was justified in passing appropriate orders relating to her de-notification. He finally maintains that the issue of declaration by a Court of law did not arise in the specific facts and circumstances of this case in view of the fact that disqualification of Respondent No,1 was based on a false misrepresentation about her educational qualification (B.A degree) made in 2003 and the provisions of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 as it existed in 2003 was not dependent upon a declaration of a Court of law.
10. The learned counsel for Respondent No,1 supported the impugned judgment. He submits that the learned High Court has correctly remanded the matter to the Election Commission of Pakistan which lacks the jurisdiction to issue declaration and as such could not have passed any order for de-notification/disqualification of Respondent No,1 with effect from 2003.
11.We have heard the learned counsel for the parties and have carefully perused the record with their assistance. The controversy involved in the present case is focused on one question namely the genuineness of B.A degree of Respondent No,1 issued by the University of Karachi.
12.When this matter was heard for the first time, after hearing preliminary arguments, we had passed the following order on 27.06.2018:- "Let the Registrar of the University of Karachi produce the entire record pertaining to the B.A Degree of Yasmeen Hussain, daughter of Ali Hussain Jamali, which was issued on 13.12.2002 before this Court on the next date of hearing. A copy of the said degree shall be sent to the concerned University for production of the complete record and verification as directed above. Besides, NADRA is directed to produce the entire record pertaining to NIC No,42000- 9350611-6 on the next date of hearing."
13. When the matter came up for hearing today, the aforenoted record was produced before us in original which has carefully been examined. On a. careful scrutiny of the original record, we have discovered the following facts:-
(i) The Matriculation Certificate on the basis of which Respondent No,1 claimed to have taken admission in the University of Karachi shows her name as Jasmeen Muhammad Hussain daughter of Muhammad Hussain whose date of birth is 25.02.1965;
(ii) The certificate issued by the Board. of Intermediate and Secondary Education from where the said Yasmeen Hussain passed her Intermediate examination being a student of Government Islamia College for Women, under Roll No,82153 in October, 1984 also shows her name as Yasmeen Hussain; (iii)The enrolment-cum-examination Form submitted with the University of Karachi also shows the name as Yasmeen Hussain daughter Muhammad Hussain with her date of birth as 25.02.1965; (iv)The tabulation sheet for regular candidates for B.A. first annual examination 1986/87 shows that a person named Yasmeen Hussain daughter of Muhammad Hussain appeared in the said examination under Enrollment No,AIW:2505/ 84, Seat No,5478. She failed in the subjects of English and Pak Studies;
(v) We have, however, been shown the original Register containing Tabulation sheets of regular candidates. Against Registration No,11794/36, Seat No,85367 the name of Yasmeen Hussain daughter of Muhammad Hussain was originally written with a typewriter appears. However, by way of tampering the name "Muhammad" has been struck out with pen and the word "Ali" has been added in capital letters above the struck out name. Likewise, the word "Jamali" has been added in hand in capital letters.
14. From perusal of the original record, it is clear and obvious to us that Respondent No,1 whose name is Bibi Yasmeen Shah and whose father's name in the NADRA. Database is Ali Hussain Jamali, and whose date of birth according to her NIC and NADRA record is 20.05.1968 is not the same person, who was a student of the University of Karachi and had appeared in the aforenoted examinations including Matric, Intermediate and Graduation.
15. The person named Yasmeen Hussain daughter of Muhammad Hussain was born on 25.02.1965 and is clearly a different person.
Hussain was born on 25.02.1965 and is clearly a different person.
16.A representative of the University of Karachi who is present in Court has clearly and categorically stated before us that the University never allows change or modification of name of any of its students in the original record without being provided a decree of a Court of competent jurisdiction directing the University to undertake such change of name. He maintains that there is no decree of any Court provided to the University at the relevant time for the said purpose by Respondent No,l. He further submits that the degree possessed by Respondent No,1 and claimed to have been issued to her by the University of Karachi is fake and for the same reason it was never verified by the University when sent to it for verification. There is a clear discrepancy in the name, parentage and date of birth of Respondent No,1 and the person who she claims to be and on whose educational record she relies upon.
17.We have confronted the learned counsel for Respondent No,1 with the entire original record and asked him to offer an explanation which he has not been able to provide. We are, therefore, in no manner of doubt that the degree possessed by Respondent No,1 is fake having not been issued by the University of Karachi pursuant to fulfillment of all ' terms and conditions and passing the requisite examination by Respondent No,
1. The Respondent has tried to defraud the system and has dishonestly filed fake and fabricated documentation with the Petitioner. Such candidates pollute the stream of democracy which must consist of honest and upright people with pristine character whose integrity is beyond any doubt. The Respondent No,1 obviously falls much short of this benchmark and cannot be allowed to join the election process.
18. In view of the foregoing, we convert these petitions into appeals and allow the same. The impugned judgment of the High Court of Sindh dated 29.03.2018 is hereby set aside and the order dated 25.10.2017 passed by the Election Commission of Pakistan is affirmed and upheld.
19.Above are the reasons for our short order passed today. The same for sake of convenience is reproduced below:- "For the reasons to be recorded later, these petitions are converted into appeals and allowed. It is declared that the respondent has never been a Graduate possessing a valid degree as per the record. Thus, she, having given a false declaration, is disqualified in terms of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan to contest the general elections.